Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA328675, Morris B. Jones, Judge.
Law Offices of Anthony D. Zinnanti and Anthony D. Zinnanti, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Guy Gallager, appeals the judgment entered following his conviction, by jury trial, for vandalism and carrying a concealed dirk or dagger. (Pen. Code, §§ 594, 12020, subd. (a)(4).) Gallager was sentenced to state prison for a term of two years. The judgment is affirmed.
All further statutory references are to the Penal Code unless otherwise specified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), we find the evidence established the following.
1. Prosecution evidence.
About midnight on September 7, 2007, Isaac N. heard the car alarm on his father’s car go off. He ran out of the house, followed by his father, Rafael, and other family members. They saw defendant Gallager sitting inside the car. Isaac opened the door and asked Gallager what he was doing. Gallager did not respond, but when Rafael reached for his car keys, Gallager said “Back off.” Rafael testified Gallager was “reaching to his waist, and he was telling me to back off.” Rafael got scared because he thought Gallager might have a gun in his waistband, so he told his family to move away from the car and call the police.
When Gallager heard the police being called, he got out of the car and walked away. Isaac followed in his mother’s car and found Gallager walking down the street. Isaac watched as Gallager appeared to shatter the window of a Mercedes with his elbow. Isaac kept following Gallager and eventually the police arrived. Officer Pardo arrested Gallager and searched him. Pardo found a kitchen knife inside Gallager’s front waistband. When Pardo first felt the knife, he exclaimed, “Wow, what’s this[?]”, and Gallager replied, “It’s for those fools.”
2. Defense evidence.
Gallager rolled up his right sleeve to show the jury his tattoos.
CONTENTION
There was insufficient evidence to sustain the weapons conviction because, as a matter of law, Gallager’s knife was not a dirk or dagger.
DISCUSSION
Whether Gallager’s kitchen knife was a dirk or dagger was properly decided by the jury.
Gallager contends his conviction for carrying a concealed weapon must be reversed because, as a matter of law, his kitchen knife was not a dirk or dagger as defined by section 12020, subdivision (a)(4). This claim is meritless.
1. Legal principles.
“Until 1994, section 12020 made it a crime to carry a concealed dirk or dagger without defining the terms ‘dirk’ or ‘dagger.’ [Citation.] As a result, courts provided their own definition: ‘A dagger has been defined as any straight knife to be worn on the person which is capable of inflicting death except what is commonly known as a “pocket-knife.” Dirk and dagger are used synonymously and consist of any straight stabbing weapon, as a dirk, stiletto, etc. [Citation.] They may consist of any weapon fitted primarily for stabbing. The word dagger is a generic term covering the dirk, stiletto, poniard, etc.’ [Citations.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 328-329.)
However, the use of these judicially-generated definitions entailed inconsistent outcomes: “In 1993, the Legislature attempted to resolve the inconsistencies in the case law by enacting the first statutory definition of dirk or dagger. The 1993 version of section 12020, subdivision (c)(24), which became effective in 1994, defined ‘a “dirk” or “dagger” ’ as ‘a knife or other instrument with or without a handguard that is primarily designed, constructed, or altered to be a stabbing instrument designed to inflict great bodily injury or death.’... [¶] Less than two years later, the Legislature changed the definition of ‘dirk’ or ‘dagger’ to the one at issue here. Concerned that ‘gang members and other[s] who carry lethal knives hidden in their clothing [were] essentially immune from arrest and prosecution’ under the 1993 definition [citation], the Legislature broadened the definition of dirk or dagger by replacing the phrase, ‘that is primarily designed, constructed, or altered to be a stabbing instrument,’ with the phrase, ‘that is capable of ready use as a stabbing weapon.’ [Citations.]” (People v. Rubalcava, supra, 23 Cal.4th at p. 330, fn. omitted.)
Currently, section 12020, subdivision (a)(4), prohibits anyone from “[c]arr[ying] concealed upon his or her person any dirk or dagger.” Subdivision (c)(24) provides: “As used in this section, a ‘dirk’ or ‘dagger’ means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. A nonlocking folding knife, a folding knife that is not prohibited by Section 653k, or a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.”
Section 653k prohibits possession of a switchblade knife.
2. Discussion.
Gallager argues we should reverse his weapons conviction on the basis of People v. Barrios (1992) 7 Cal.App.4th 501, which held an ordinary kitchen knife was not a dirk or dagger within the meaning of section 12020. According to Gallager, his knife “was nothing more than a common kitchen knife; identical in make and description to that in Barrios,” and therefore his knife could not have violated the statute. The Attorney General disagrees, arguing Gallager’s knife was not identical to the knife in Barrios. We agree with the Attorney General.
Barrios provided a very detailed description of the knife at issue there: “The knife appears to be a common bread knife. It has one dull serrated edge and one blunt edge. The blade is about eight inches long and the wooden handle about four inches. There are no handguards to prevent the wielder’s hand from slipping onto the blade if it was used to stab. The end of the blade is essentially rounded and comes to a modest point only on the serrated edge. The blade itself flexes noticeably when the point is applied to an object. [¶] This knife has characteristics which substantially limit its effectiveness as a stabbing instrument. It has no sharp edges, no stabbing point, no handguards, and no stiff blade. It is not a dirk or dagger as a matter of law. [Citation.]” (People v. Barrios, supra, 7 Cal.App.4th at p. 506.)
The Attorney General argues Gallager’s knife was nothing like the knife in Barrios because it “had a sturdy, stainless steel blade, a sharp pointed tip, a non-serrated cutting edge, and a hand grip. The blade was eight inches long and resembled a large steak knife.” The Attorney General asserts: “Because appellant’s knife was clearly an effective stabbing tool, the question of whether it was a dirk or dagger was properly before the jury.” The Attorney General also points out the evidence showed Gallager knew his knife could be used as a stabbing weapon because he threatened the victims by reaching toward his waistband, and because he later told Officer Pardo the knife was “for those fools.”
Gallager responds that, although the “finer characteristics” of his knife might differ from those of the Barrios knife, his knife “is still a kitchen knife” and, “[a]s such it has per se limited ‘effectiveness as a stabbing instrument.’ ”
Gallager’s arguments are unavailing. It is true that “depending on their characteristics and capabilities for stabbing and cutting, some objects present a question of fact as to whether they are a ‘dirk or dagger,’ whereas others are considered a ‘dirk or dagger’ as a matter of law.” (In re Quintus W. (1981) 120 Cal.App.3d 640, 644-645.) But this does not help Gallager because, where everyday tools and utensils are concerned, it has been routinely held the trier of fact must determine if the item qualifies as a dirk or dagger. (See People v. Bain (1971) 5 Cal.3d 839, 851-852 [pocketknife with handguards and folding blades that lock]; In re Quintus W., supra, at p. 645 [“kitchen knife with a blade that was four and five-eighths inches long”]; In re Robert L. (1980) 112 Cal.App.3d 401, 404 [“ice pick of ordinary commercial manufacture”]; People v. Villagren (1980) 106 Cal.App.3d 720, 727 [hunting knife]; People v. Ferguson (1970) 7 Cal.App.3d 13, 18 [“ordinary kitchen knife, having a wooden handle and a steel blade eight inches long, with a point and one cutting edge”].)
The reason for such outcomes was well-stated by Villagren: “We reject appellant’s contention that the trial court should have held that as a matter of law the hunting knife was not a ‘dirk or dagger.’ To have so held, the trial would have had to find that the knife used in this case had characteristics substantially limiting its stabbing effectiveness.... Just as an ordinary kitchen knife has the characteristics of a stabbing and cutting weapon [citation], so has the hunting knife in this case. It is substantially made, and capable of inflicting a fatal wound. It was properly left to the jury to determine whether the knife was a ‘dirk or dagger.’ ” (People v. Villagren, supra, 106 Cal.App.3d at p. 727.)
Having examined Gallager’s knife ourselves, we find the Attorney General’s description to be accurate. The knife appears to be made of a single piece of stainless steel. It has an eight-inch blade and a handle which is four and three-fourths inches long. The blade has one dull edge and one sharp edge, and it comes to a very sharp point. The blade is rigid and it does not flex when pressed against an object. Our only disagreement with the Attorney General’s characterization of the knife is that we would describe it as a chef’s knife, not a steak knife. Unlike the knife in Barrios, Gallager’s knife did not possess any characteristics substantially limiting its effectiveness as a stabbing weapon.
Moreover, and contrary to Gallager’s argument, the circumstances surrounding his possession of the knife, including the statements he made and the actions he took, also tended to show his knife was a dirk or dagger. (See In re Victor B. (1994) 24 Cal.App.4th 521, 527 [tire repair tool altered to resemble ice pick constituted dirk or dagger as matter of law, in part because minor told police he carried it for protection]; In re Quintus W., supra, 120 Cal.App.3d at p. 645 [juvenile court properly considered minor’s statement “ ‘Hey, man, that’s my knife. I carry it for protection.’ ”]; In re Robert L., supra, 112 Cal.App.3d at p. 405 [rejecting minor’s claim ice pick was not dirk or dagger as matter of law where it had been concealed in his waistband and he said he carried it for protection].)
Hence, we conclude the trial court did not err by having the jury decide if Gallager’s knife was a dirk or dagger as defined by section 12020.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.